An order passed on an application under Order IX Rule 5 CPC is not an appealable order under Section 223 of the Rajasthan Tenancy Act, 1955 but can be challenged by filing a revision petition under Section 230 of the Rajasthan Tenancy Act, 1955.

JUDGMENT :

1. The facts borne out from the pleadings are that the respondents/plaintiffs No.1 & 2 namely; Urmila Devi & Sita Ram (hereinafter to be referred as ‘the respondents’) filed a suit before the Court of Sub Divisional Officer, Sri Madhopur, District Sikar, for declaration and permanent injunction in respect of land measuring 11 bigha situated in Village Sri Madhopur, District Sikar. The suit was resisted by the defendants by filing the written statement wherein denied the averments of the plaint.

2. During the pendency of the suit an application was filed by the defendants under Order IX Rules 2 & 5 CPC stating that the suit has been filed on false and fabricated facts and the plaintiffs are not taking necessary steps for service of summons upon the defendants and prayed to dismiss the suit.

The Court of Sub Divisional Officer, Sri Madhopur, District Sikar, vide order dated 02.05.2013 dismissed the suit in default observing that since 29.07.2008 the plaintiffs have not made any efforts for service of summon upon the defendants and in such a situation the suit proceedings cannot be continued for the unending period. The Court of Sub Divisional Officer, Sri Madhopur ordered to prepare a decree and the decree was prepared.

3. Against the judgment & decree dated 02.05.2013 passed by the Court of Sub Divisional Officer, Sri Madhopur, District Sikar, the plaintiffs /respondents namely; Urmila Devi and Sita Ram filed an appeal before the Court of Revenue Appellate Authority, Sikar.

4. During the pendency of the appeal before the Court of Revenue Appellate Authority, Sikar, the plaintiffs/ respondents Urmila Devi and Sita Ram, against the same order dated 02.05.2013 passed by the Court of Sub Divisional Officer, Sri Madhopur, District Sikar, also filed a revision under section 230 of the Rajasthan Tenancy Act, 1955 (for short ‘the Act of 1955’) before the Court of Board of Revenue, Rajasthan, Ajmer. In the memo of revision filed under section 230 of the Act of 1955, the respondents /plaintiffs in para No.7 has specifically pleaded that by over-sight of law and due to inadvertent mistake, they filed the appeal before the Court of Revenue Appellate Authority, Sikar, against the order dated 02.05.2013 passed by the Court of Sub Divisional Officer, Sri Madhopur, District Sikar. The respondents/plaintiffs further pleaded that since the order of the Court of Sub Divisional Officer, Sri Madhopur, District Sikar, is revisable order, they will get the appeal dismissed as withdrawn which is pending before the Revenue Appellate Authority, Sikar.

5. The Court of Board of Revenue, Rajasthan, Ajmer, considering the arguments of both the counsel appearing for the respective parties, by a detailed order dated 13.04.2017 allowed the revision filed by the respondents/ plaintiffs on the cost of Rs.5,000/- and set aside the order dated 02.05.2013 passed by the Court of Sub Divisional Officer, Sri Madhopur, District Sikar and remanded the matter to the trial court for decision afresh.

6. Aggrieved by the order dated 13.04.2017 passed by the Court of Board of Revenue, Rajasthan, Ajmer, the legal heirs of petitioners/defendants No.3 and 4 namely; Moti Lal and Prabhu Dayal filed a review petition under section 229 of the Act of 1955 before the Court of the Board of Revenue, Rajasthan, Ajmer.

The review petition filed by the legal representatives of petitioners/ defendants No.3 and 4 namely; Moti Lal and Prabhu Dayal was dismissed by the Court of the Board of Revenue, Rajasthan, Ajmer, vide judgment dated 20.12.2017 observing that earlier the order in the revision was passed after considering all the factual as well as legal aspects and therefore, no scope and grounds are there to review the earlier order.

7. The defendants No.3 and 4 i.e. the present petitioners being aggrieved by the order dated 20.12.2017 passed by the Court of the Board of Revenue, Rajasthan, Ajmer in the review petition, as well as the order dated 13.04.2017 passed by the Court of the Bo